The right to be forgotten, sometimes

A year ago Europe’s highest court decided that people have a “right to be forgotten” on the internet. Since then European citizens have
been bombarding search engine companies with requests to remove
links to web pages with embarrassing or compromising facts about
their pasts.
But is the system actually working and should it
be?

Google, which enjoys 90% of market share, seems to be taking the
issue seriously. In its recent transparency report, the company claims to have processed more than 250 000 requests,
relating to nearly a million links. It removed over 350 000 of
these links but the majority (58.7%) were not removed.

Forget.me – a service that helps people submit these requests more
easily – puts Google’s refusal rates at closer to 70%. The service
has facilitated more than 60 000 requests since June 2014, nearly a
quarter of the total, and its recent report on its first year of operation offers fascinating details about the
data which Google itself chooses not reveal.

For one thing the fears that Europe’s press would be censored en
masse appear to be overblown. Just 3.3% of requests applied to
press websites and only 0.4% of the URLs eventually removed. This
suggests that between 3 000 and 5 000 links to press sites have
been removed from Google’s search results at the request of
individuals. Not ideal, but not exactly a police state.

Instead the vast majority of requests are directed at links to
social networks and communities. This goes hand in hand with the
most common category of request – invasion of privacy. To put it
bluntly Google is forced to spend the majority of its resources
removing links to embarrassing content on social media
sites.

Reputation VIP, which runs Forget.me, is naturally enthusiastic
about the right to be forgotten. Its entire business is built
around helping people to groom and control their online
reputations. So while its data may be interesting, its
participation in this debate is entirely self-serving. It’s clear
that Reputation VIP would prefer Google’s removal rate to be a lot
higher.

It’s equally clear that a lot of very bad people are asking Google
to remove results that belong firmly in the public record. Its
transparency report offers some hair-raising examples.

From France: “A priest convicted for possession of child sexual
abuse imagery asked us to remove articles reporting on his sentence
and banishment from the church. We did not remove the pages from
search results.”

From Italy: “We received multiple requests from a single individual
who asked us to remove 20 links to recent articles about his arrest
for financial crimes committed in a professional capacity. We did
not remove the pages from search results.”

Google’s team is certainly wrestling with some complex and thorny
requests and appears to be trying to act in the best interests of
the public good while still obeying the court’s ruling. This
example from the UK epitomises this balancing act:

“A doctor requested we remove more than 50 links to newspaper
articles about a botched procedure. Three pages that contained
personal information about the doctor but did not mention the
procedure have been removed from search results for his name. The
rest of the links to reports on the incident remain in search
results.”

The question remains whether Google or any of its smaller
competitors like Bing are the right parties to be handling this
sensitive process. European governments have taken what should be a
function of their own justice systems and outsourced it to
multinational corporations, at zero cost.

Google’s transparency reports suggest that it is behaving ethically
and doing its best to be a good corporate citizen, but it is always
going to be a grudging participant in this circus. For true justice
to be done, it should follow the due processes of Europe’s legal
systems. Anything else is an abdication of judicial
responsibility.

Case in point: at the moment no concrete legal mechanism exists to
appeal a refusal by a search engine operator to remove a link. So
if Google or Bing says “no” then you’re stuck, unless you’re
willing to spend five years taking them all the way to the Court of
Justice of the European Union.

Even more worrying is the almost complete lack of oversight in the
process. Search engine companies are effectively left to their own
devices and trusted to balance complex and contradictory principles
like the right to privacy against the right to freedom of
expression.

There’s no doubt that Mario Costeja González, the Spaniard who
started this whole mess, had the best of intentions. Embarrassing
information on the internet should not be allowed to haunt you for
decades if you’re innocent of any real crime. But Europe’s justice
system should have taken the harder, messier road of creating the
machinery required to force website hosts to remove the data
itself.

Instead they have taken the easy way out and forced Google – big,
ugly, obscenely profitable and American – to do their dirty work
for them, knowing that no one would stick up for the hated
playground bully. This was a political decision, not a legal one.
Good law is never this convenient.